Send broadcast law back to drawing board

GUY BERGER: CONVERSE - Nov 12 2009 06:00

There's a lot more in the government's new Bill on broadcasting than whether a tax will replace the TV license.

At heart, it's a super-ambitious drive to redesign the broadcasting landscape. This is largely through a major fund to be set up by the envisaged levy of up to 1% on income or turnover.

It's the 'developmental state' seeking to shape mass communications. That's not a bad thing as such, but the Bill is a rush job, full of grammatical errors and some serious problems.

Among the significant provisions:

There's a vision of an SABC even bigger than before, and backed by taxpayer funds to deliver new regional TV and other channels (educational, sports, et cetera).

The SABC is told to have three separate divisions: public, commercial and international. The first should be subsidised by the second, while the government is expected to directly fund the third.

While the SABC's public channels can continue to take adverts, their public logic is supposed to be unaffected because a ceiling is set. Advertising income is limited to being below the sum of the non-commercial revenues from the new fund and the profits from the commercial operations.

Also new is taxpayer funding for the community broadcast sector, and for tighter governance of community stations.

Recognising that the SABC does not have a monopoly on public broadcasting, other broadcasters will be allowed to bid for subsidies to do programmes around 'democracy, culture and development'.

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Insulating broadcasters from direct government allocation of funds, the parliamentary-appointed Media Development and Diversity Agency (MDDA) is tasked to distribute the monies. (Disclosure: the author is a board member of this agency).

As wide-ranging as they are, the Bill's proposals do not go far enough:

They foresee a role for provincial governments funding the SABC's future provincial channels, and they see similar partnerships between municipalities and community radio. At least, it is stated that community media must be independent of municipalities.

However, off the table is the more radical notion of dismantling the megalith SABC, and part decentralising it into several competing public broadcasters, with governance boards also operating at the regional and provincial levels.

The broadcast regulator, the Independent Communications Authority of South Africa (Icasa), is effectively told to end its laid-back stance and to take responsibility for overseeing the boards of the SABC and community broadcasters. The regulator is also charged with providing an appeal mechanism against decisions by the MDDA.

Commendably, the SABC board is required to set up a public audience advisory council and ensure there are annual provincial consultations and effective complaints systems. That's a start for public accountability.

But the system of staggered terms of office for board members is left out of the picture -- allowing for possible political 'capture' via clean sweep appointments and dismissals.

Also, a section of the Bill confusingly reads that the board should submit editorial policies to Icasa, but, in the same sentence, says "to the minister". If the intention is the minister, this is a step backward from the status quo.

The minister is empowered to give directives to the SABC in cases of dysfunctionality -- but there is no requirement that these should be transparent in the sense of being tabled for public scrutiny and comment. In this regard, the bill is definitely a retrograde step.

The draft law also implies that the minister can give directives to community broadcasters. It further specifies that stations in this sector have to adhere to the Public Finance Management Act (without limiting this stricture to their spending of taxpayers' funds). These represent an unwarranted intrusion into civil society.

While the bill removes the executive management from their present status of being board members, it is vague about who selects this top echelon. It says the board appoints the executive in "consultation" with the Minister - but it's unclear whether this means a veto power or not.

The unworkable system of the SABC's CEO continuing to double-up as editor-in-chief is retained. This perpetuates an impossible job, meaning that at least one of the CEO's focus areas will be neglected -- be it the world cup, digital migration, the new channels, business viability, local content, or editorial independence and quality.

Some of the problems in the draft law are due to its origins. There had been widespread expectations that the Department of Communications would follow the logical path of a Green and White Paper, before proceeding to law.

Instead the government moved straight from a Discussion Paper, presented in late July to the current Bill, just over two months since closing date for comments on the Discussion Paper.

That consultation itself may have been a charade -- for example, the Bill still includes an embarrassingly erroneous definition of "digital", despite this having been pointed out in at least one submission about the Discussion Paper.

More significantly, it's not a formality to go through best practice policy procedures before reaching legislation.

For example, the Bill currently leaves it to Icasa to decide on advertising levels for the new regional TV channels, and for MDDA to decide on criteria for allocating money. Lack of explicit guidance on these issues is problematic.

In the new-found spirit of assertiveness, the Parliamentary Committee of Communications should send the bill back to government, and call for an elaborated policy document as a prior step to drafting a law.

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Send broadcast law back to drawing board

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